Moroccan family law sets the minimum age for marriage at 18 years for both males and females. However, it allows for exceptions in the case of minors provided a permit stating the reasons is obtained from a judge. Regular official national statistics issued by the Ministry of Justice and Freedoms in 2014 which cover the first years after the family law came into force, show that in practice, about 90 percent of applications for such permits are approved. Civil society and other interested parties have expressed concern in light of these findings.
According to these statistics, the number of permits granted by judges has risen from over 18,000 in 2004 to around 39,000 in 2011. The number of rejected applications, on the other hand, has been relatively small – close to 4,900 in 2011, or 10 percent of the total number of applications. The majority of applications concern females under the statutory age of marriage. In 2011, the number of applicants for males was only 326 compared to about 46,600 for females, which strongly suggests that underage marriage is mainly a female phenomenon. The rate of growth of the number of applications has fluctuated widely – from 22 percent between 2005 and 2006, to 3 percent between 2007 and 2008.
Most of the applications are for potential spouses aged 17 years, and the numbers decrease rapidly for younger potential spouses. The statistics for the last five years are as follows.
No. of Applications
A study of a sample of the permits issued for underage marriages shows that the reasons most frequently given for the exemption are as follows.
The best interests of the girls, to protect them, and prevent them from having illicit relationships;
The girls have ceased to attend school;
The girls are not qualified for any trade or profession;
The parents have limited financial resources; and
The local custom in the area is that women marry young, for fear that they might end up remaining single.
The growth of the phenomenon of underage marriage in Morocco suggests that it may be an entrenched cultural practice, especially in rural areas that for decades have lacked social development programs that would enable parents to offer their daughters a better future. The only solution available to them is to marry them off to save themselves the expense of supporting them, and to escape poverty and marginalization. However, this might prove to be counterproductive if the marriage fails, which happens in many cases because families with underage brides tend to be fragile. The parents of the divorced wife then face extra costs. They not only have to support their daughter, but also any children she may have from the failed marriage, especially when the former husband and his family are in a precarious financial position. Under these circumstances, underage marriage turns into a catalyst for other social problems.
An open debate about underage marriage has emerged at the national level, with contributions from all the active and effective forces in the country, as well as organizations concerned with family matters. The debate coincides with two important events: firstly, the national dialogue on reforming the justice system which aims to enhance the authority of the judiciary, and secondly, the tenth anniversary of the passage of the family law. The purpose of the debate is to better understand this widespread phenomenon which raises a number of problems in practice, and to look for the most appropriate ways to tackle it. Most of the proposals submitted have focused on the role that legislative reform plays in closing the loopholes with respect to underage marriage.
The most important proposals were the following:
Providing the Resources Needed to Carry out Specialized Social Research.
Given the lack of resources to carry out specialized social research to establish whether the claims made in applications for underage marriage permits are real and legally acceptable, a family court judge usually bases their decision to provide or withhold a permit on his own investigation into the case. A judge’s investigation draws on what the prospective spouses and the guardians of the underage spouse tell him in the consultation room. The information they consider include: whether the girl is physically capable of bearing the burdens and responsibilities of marriage (this is judged by, for instance, asking whether the girl has fasted during Ramadan for two successive years); whether the prospective spouses are related; and, whether the customs of the people in the area permit girls to marry at the girl's age. A judge also inquires about the economic and social circumstances of the underage girl, and whether the girl is approaching the legal minimum age for marrying. However, in practice, a judge does not verify the claims presented by the parties, nor are they capable of ascertaining whether the marriage would be in the interest of the girl; nor are they capable of determining whether the husband has the financial means to marry, or whether the girl is psychologically prepared for the marriage. That would require specialized social research. Social workers would have to report on the social and family circumstances of the bride and bridegroom, and their readiness to start a family given that one of them is underage.
Making Medical Examinations Obligatory.
Medical examinations are one of the important innovations that legislators have come up with as a way to enable the judge to decide whether or not to grant a permit for an underage marriage. They enable the judge to check that the underage spouse is mature and qualifies physically, which could help them decide whether the marriage is in the interest of the underage spouse. The expert should carry out the necessary clinical examination and write a detailed report on their findings and conclusions. Despite the importance of medical examinations, the lawmakers have not made them obligatory.
Ensuring That Judges Receive Continuous Training and are Imbued With the Principles of Women's and Social Rights.
One of the most important conclusions of a number of field studies on what the family law has achieved in its first ten years, was that patriarchal values continue to play a negative role as do the traditions deeply entrenched among those in the legal professions – who are resistant to the change that the family law has brought about. This prevents them from embracing the philosophy of family law, which is based on equality and equity between men and women. Examples of this negative attitude include: tolerance toward violence, especially domestic violence against women as an expression of the husband's customary right to discipline his wife; reluctance to be strict about underage marriages; tolerance toward polygamy, and broad interpretations of the concept of objective exceptional justification by accepting any reason raised by a husband who wants to take another wife; and, accepting as valid the formal agreement of the first wife, who in many cases will have been coerced, if only indirectly. These attitudes suggest the need for serious thought about organizing regular training courses for judges and those working in the court system.
Criminalizing the Illegal Marriage of Those Who are Underage.
When applications for permits for underage marriage are rejected by the family courts, the parties do not necessarily obey the judicial ruling. They can circumvent the ruling by carrying out an informal wedding and applying to the court at a later stage for an order that formalizes the marriage under Article 16 of the family law (if it is amended and the exceptional period is extended for a new period). This has happened in many instances. There can therefore be no guarantee that the safeguards that the lawmakers set out for regulating underage marriage will be properly respected, unless a binding legal text is introduced that criminalizes all attempts to circumvent the law in general, and the requirements for underage marriage in particular. Lenience toward such circumvention is likely to lead to acceptance of the practice as normal, and to the spread of other phenomena including the promotion of child marriage.
Requiring That Underage Wives Receive Compensation if They are Divorced Because Such a Divorce Would be Abusive.
Any sensible person who marries a minor should be aware that the other party is still a minor, and so the elder party bears responsibility for the choice and should fulfill their obligations toward the court that gave them the permit to marry. In practice, however, just as the number of underage marriages has been constantly on the rise in most family courts, the phenomenon of underage wives being divorced is also glaringly obvious. Many cases of divorce arise because of the failure of marriages in which the wife is a minor. This shows that the permits issued by the judiciary in these cases were not based on objective data, and that the husbands who married minors did not fulfill their legal obligations to protect the interests of their wives. To tackle the issue of divorcing underage wives, some family courts treat applications to annul marriages in such cases as an abusive termination of the marriage. Examples of such rulings by family courts include the ruling issued by the Court of First Instance in Nador. The ruling justified the amount of compensation due to the wife, a total of 60,000 dirhams [US$~6,850], by stating that: the husband had acted unilaterally when the divorce took place, the marriage had not lasted more than two months, and the wife was underage. As a result, the amount of compensation had to be raised.
Promoting Legislative Reform to Provide Incentives to Improve the Status of the Family in All its Aspects.
Official statistics suggest that underage marriage is not solely a rural phenomenon but also exists in towns and cities. Rural migration to urban areas has contributed to the spread of the phenomenon. A legislative amendment that reduced the minimum age for marriage to 17 or 16 years would fall short of tackling the problem, unless attempts are made to find a solution that addresses the roots of the issue. Early marriage cannot be the only choice available to girls and their families.
In general it must be recognized that underage marriage is a complex problem that has social, economic, cultural, and legal dimensions. Instant solutions cannot be created simply through legislation, and a comprehensive approach must be adopted. We need to think about carrying out social studies designed to understand the phenomenon, and the reasons behind its spread at a time when marriage rates in general are in decline and the level of awareness is on the rise.
The recent debate on the subject has focused largely on judicial practice, which has been blamed for the spread of underage marriages. In fact, the judiciary is no more than a conduit for applying the law. The existing legislation itself must be taken into account, because the law should never be detached from reality.
This article is an edited translation from Arabic.
 Ruling No. 80 by the Court of First Instance in Nador, November 23, 2004.